Seek Justice Pty Ltd v Minister for Lands and Water

Background

1. The Applicant has commenced the substantive proceedings by Summons dated 25 January 2023 in the Court's Class 4 jurisdiction against the Minister for Lands and Water (the First Respondent), the Council, and the Church Missionary Society NSW & ACT Ltd (the Third Respondent). The relief claimed, as divided into six "parts", sought various declarations, including that car parks and transport interchanges operated by the Third Respondent at 21-27 Gates Avenue, Katoomba for the purposes of its 2023 summer school event be declared an unlawful development; that the Council acted unreasonably in failing to release documents relating to the "The Gully Cooperative Management Committee" meetings and that such documents constitute "open access information" for the purposes of s 6 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act); that cl 70A of the Crown Lands Management Regulation 2018 (NSW) (CLM Regulation) be declared invalid; that the "Katoomba Falls (Part) Reserve Plan of Management" and "The Gully Plan of Management" are both invalid; and costs.
2. The Applicant has sought and obtained leave to amend the originating Summons on two prior occasions, namely 14 July 2023 and 15 March 2024. It is the Further Amended Summons filed on 4 March 2024 that is now sought to be amended.
3. The substantive proceedings are currently listed for hearing for 2 days commencing on 26 November 2024, with a pre-trial mention listed for 21 October 2024. The hearing dates were fixed by the Court at a directions hearing held on 5 July 2024 at which time directions were also made for the preparation and filing of evidence. To date only the Fourth Respondent has complied with such directions.
4. The 20 September 2024 Amended Motion raises for consideration whether a number of orders should be made. I will deal with each nominated order sought in turn.

Order 2 - Production of a list of plans of management

1. By Order 2 of the Applicant's 20 September 2024 Amended Motion it seeks, in essence, an order that the Council provide it with a list of all plans of management it has adopted since 4 June 2021 where the categorisation of Crown Land were not considered at a public hearing by virtue of the operation of cl 70A of the CLM Regulation.
2. In the substantive proceedings the Applicant seeks a declaration that cl 70A of the CLM Regulation is invalid and a further declaration that any plan of management made without a public hearing by operation of that clause of the CLM Regulation are also invalid. The substantive proceedings do not identify in terms which of the Council's plans of management this declaration is intended to relate.
3. The Council opposed the making of this order as it contended that rather than mere production of documents in Council's possession (which were otherwise publicly available) the Applicant was inappropriately seeking a form of discovery, in that the Council would be required to undertake an evaluative exercise to determine to which plans of management the request could possibly relate and thereafter whether the decision not to hold a public meeting was reliant upon cl 70A of the CLM Regulation.
4. I accept the Council's submission. Order 2 of the 20 September 2024 Amended Motion is one that requires an intellectual evaluation of every plan of management made by the Council after the specified date in 2021. Such exercise is not merely an identification of plans of management adopted after this date but requires a consideration as to whether the plan involves: the categorisation of Crown Land; and thereafter whether a public meeting was held and, if not, for what reason.
5. In the circumstances, I decline to make Order 2 as sought in the 20 September 2024 Amended Motion. The proceedings are listed for hearing in November and directions have been made (but not complied with) relating to the preparation of evidence. There is no reasonable explanation as to why such a request is made so late in the preparation process - noting that the substance of the claim in the substantive proceedings to which this request relates was first pleaded in the Summons dated 25 January 2023, some 18 months ago. To permit a request of this nature at this point in time would be contrary to the overriding purpose of case management as provided for in s 56 of the Civil Procedure Act 2005 (NSW) (CP Act): to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Absent explanation as to the delay in making the request I consider that to require the Council to undertake this task at this stage would be unreasonable and likely prevent the timely provision of evidence prior to the hearing.
6. Further, I consider that the proposed Order 2 in the 20 September 2024 Amended Motion is akin to discovery in so far as it requires the Council to make evaluative decisions in the production of such documents, which is beyond a reasonable request to be made in the subject matter of these proceedings.
7. I decline to make Order 2.

Order 3 - Production of legible copies of documents

1. The third order sought in the 20 September 2024 Amended Motion was agreed, that subject to some minor amendment should be made. Accordingly, by consent, I will make Order 3 in the following terms: The Second Respondent shall provide the Applicant, by post. a legible printed copy of the documents it has previously provided in PDF format in answer to the Applicant's notice to produce dated 6 May 2024 entitled: (a) EMAIL parking at Frank Walford Park: PDF; and (b) EMAIL permission to remove Frank Walford Park from application: PDF.

Order 4 - Leave to further amend Summons

1. The Applicant sought leave to further amend the Summons. The amendments sought were identified by the double underlining in the Draft Further Amended Summons. Unfortunately, the Draft Further Amended Summons retained the single underlining which was said to represent amendments for which leave had already been granted. To be clear, the application before me is only those changes identified by the double underlining.
2. The changes sought can be grouped into the following categories: 1. Amendments not pressed at hearing of 20 September 2024 Amended Motion: page 3 paragraphs 16 and 17; and page 9 paragraphs 19 and 20; 2. Amendments not opposed at the hearing of the 20 September 2024 Amended Motion: page 2 paragraph 1; page 3 paragraphs 10, 11 and 12; and page 5 paragraphs 6 and 7; 3. Deletions: page 5 paragraphs 8 and 9; page 6 paragraph 10; and page 7 paragraphs 12, 13 and 14; 4. Roads Act claim: page 2 paragraphs 5 and 6; page 4 paragraphs 1, 2 and 3; and page 5 paragraph 4; 5. Additional dates for the Third Respondent's summer school events: page 2 paragraph 3; and page 4 paragraph 2; 6. Amended pleadings related to: 1. Katoomba Falls (Part) Reserve Plan of Management: page 6 paragraph 11; and 2. The Gully Plan of Management: page 7 paragraph 15.

Categories 1, 2 and 3

1. The first, second and third categories above are uncontroversial, and leave will be granted to make such amendments. I note that with respect to category 3, I requested submissions from the Applicant as to whether it still sought leave to delete those paragraphs in the event leave was not granted for the amendments proposed in paragraphs 11 and 15. The Applicant did not submit that the deletions should not be made.

Category 4

1. As to category 4 which concerns an asserted breach of s 8(1) of the Roads Act 1993 (NSW) (Roads Act), the Applicant contended that such amendments were necessary to prevent the Council relying upon the Roads Act in any defensive position at the hearing of the substantive proceedings. The Council has not identified any such defence of the Summons as presently pleaded. It has denied the claims as formulated and not raised the Roads Act specifically in any defence.
2. The Council contended that the lawfulness of the road in question, namely Gates Avenue, had not been previously raised and that to permit such an amendment at this stage would not meet the overriding purpose of case management, the objects of case management or the dictates of justice as provided for in ss 56 to 58 of the CP Act. The lateness of the claim, the failure to justify the lateness and the potential to complexity of the new claim would affect an injustice to the Council.
3. I accept the Council's submission. I have given particular weight in the application of the relevant principles under the CP Act that the Applicant is: seeking to raise the issue very late, where no justification is provided for the delay; the fact that the matter has been fixed for hearing in November and that the granting of leave would likely compromise the retention of those hearing dates thereby compromising the efficient disposition of the business of the Court. Those considerations outweigh the Applicant's desire to raise an issue to potentially diffuse a defence that has not been pleaded.
4. Accordingly, I decline to grant leave to the amendments identified in category 4.

Category 5

1. Category 5 proposes to include a reference to a summer school event proposed to be held by the Third Respondent. The Summons already pleads a reference to the Third Respondent's event in 2023. The foundation for the claim is that the use of Gates Avenue for these events is prohibited under the relevant provisions of the Council's Local Environmental Plan as such a land use should be characterised as a "transport interchange". If that be the proper characterisation of the use (and that use is prohibited) the use for the 2024 summer school event would arguably be unlawful. The only additional matter that may arise in the context of a future event are issues of discretion. I do not consider that any party is unduly prejudiced by the particularisation of the future event as the foundation of the claim (which is denied) remains the same for the past and future events.
2. I will allow the amendments in category 5.

Category 6

1. Category 6(a) is said by the Applicant to be a more precise and particularised pleading of what was originally pleaded at paragraphs that have been deleted in category 3. The Council contended that rather than a particularisation of the former claim the Applicant was seeking to raise new issues for which leave should not be granted this late in the proceedings and where no compelling reasons have been given for the delay. It contended that it would be prejudiced having to deal with fresh claims this late in the process.
2. Dealing with proposed paragraph 11, having regard to the text of the deleted paragraphs 8, 9 and 10 (which were said to be the grounds repleaded in proposed paragraph 11), I accept the Council's submission as to the majority of the paragraph. Apart from that part of paragraph 11 comprising 11(b)(i) and (iii) the balance of the paragraph seeks to raise new matters relating to the validity of the plan of management which grounds were not either expressly or by inference raised in the previous paragraphs now sought to be deleted. Accordingly, accepting the obligations placed upon the consideration of leave being granted as provided for in ss 56 to 58 of the CP Act I do not permit the raising of new issues this late in the process, particularly where no meaningful reason has been given for the lateness of this application. I further consider that by allowing the further numerous grounds to be raised at this stage that there is a real and genuine risk that the date fixed for the hearing will be compromised in order to overcome the apparent prejudice that would flow from the amendment as sought.
3. For those reasons, I propose to allow the Applicant to amend the Summons to raise only those matters identified in paragraph 11(b)(i) and (iii). The Applicant is not granted leave to amend to incorporate the balance of the amendments that are proposed in the Draft Further Amended Summons.
4. As to category 6(b) relating to proposed paragraph 15 the Applicant and the Council made the same submissions as identified at [27] above. I have considered the previous deleted paragraphs 12, 13 and 14 and do not consider that any of those issues could be said to be reasonably understood as being further particularised in proposed paragraph 15. The proposed paragraph, rather than particularising the previous claims, raises a new claim of Council "misleading" the public in certain respects. Such a claim is completely new and raises issues not previously pleaded. For the reasons identified by the Council,
5. I decline to grant leave to the Applicant to amend the Summons to raise the matters identified in paragraph 15 of the Draft Further Amended Summons.

Orders 5 to 8 - Application for transfer to Supreme Court; declaration and vacation of hearing dates

1. The Applicant sought an order pursuant to s 149B(1) of the CP Act to transfer the proceedings to the Supreme Court. Section 149B relevantly provides: 149B Transfer of proceedings between Supreme Court and Land and Environment Court (1) If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that it is more appropriate for the proceedings to be heard in the other court, it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court. … (3) No appeal lies against a decision of the transferor court to make, or not to make, an order under this section.
2. I understand that the Applicant contended that the transfer of the proceedings was necessary as the Applicant had pleaded issues in the substantive proceedings that were not within the Court's jurisdiction pursuant to the provisions of the Land and Environment Court Act 1979 (NSW) (LEC Act), relating to: 1. A declaration that the Council had acted in breach of ss 6 and 18 of the GIPA Act; and 2. A declaration of invalidity of cl 70A of the CLM Regulation.
3. This order was also sought on the basis that part of the leave sought in the Draft Further Amended Summons raised that the Council had acted in breach of s 8(1) of the Roads Act which declaration was also beyond the scope of the Court's jurisdiction. As outlined above, I decline to grant leave to permit the provisions of the Roads Act to be pleaded and therefore this consideration does not arise in the context of Orders 5 to 8 of the 20 September 2024 Amended Motion.
4. The Applicant appeared to concede that the declaration relating to the GIPA Act was beyond power. This part of the pleading has been present in the Summons since its inception in January 2023. The Council has, in its response to the Summons filed 21 March 2024, pleaded the lack of jurisdiction.
5. As to the validity of cl 70A of the CLM Regulation, this matter too has been pleaded since the first iteration of the Summons. The Council also pleaded a lack of jurisdiction as to this ground in its response to the Summons. The Applicant does not concede that this declaration is beyond power and relies upon the Court's ancillary jurisdiction in s 16(1A) of the LEC Act. The Council conceded that whether the declaration was capable of falling within the Court's ancillary jurisdiction was arguable.
6. In exercising the discretion conferred by s 149B of the CP Act I am required to be satisfied that it is more appropriate for the proceedings to be heard in the [Supreme Court]. The substantive proceedings (as identified above) raise a multiplicity of separate claims that on their face appear to fall within the jurisdiction conferred by the LEC Act, and it is notable that the jurisdiction of those other claims is not challenged by the Council. If a transfer were to be made, the Supreme Court would be vested with the determination of the whole of the proceedings. I am not satisfied that it is more appropriate that the proceedings be heard in the Supreme Court for the following reasons: 1. The GIPA Act claim and the cl 70A of the CLM Regulation claim are discrete claims and are separate from and not interrelated with any of the other claims; 2. The Applicant has elected to plead claims that are arguably beyond the scope of the Court; 3. The issue of jurisdiction has been known to the Applicant for some time and there is no explanation as to why the application is made so late in the progress of the proceedings to its hearing date that has been fixed for November 2024 (being fixed for that date in July 2024); 4. The majority of the claims in the Summons are, on their face, within the jurisdiction of the Land and Environment Court and that venue is the more appropriate venue for the determination of matters within its statutory jurisdiction; and 5. In the event that there is no relevant jurisdiction those parts of the claim can be agitated by the Applicant in the appropriate Court. The retention of the proceedings in the Land and Environment Court does not prejudice the Applicant in any material way.
7. For those reasons, I decline the application to transfer the proceedings, and as a consequence the application to vacate the directions hearing and the hearing date does not arise. I decline to make Orders 7 and 8 of the 20 September 2024 Amended Motion.
8. In the event that the Court declined the transfer the Applicant sought a declaration that all claims were within jurisdiction. The Applicant was unable to articulate a compelling reason as to why this should be undertaken, in effect a determination of a separate question in the context of the hearing of the 20 September 2024 Amended Motion. I decline to make such a declaration as: 1. There has been no argument in the 20 September 2024 Amended Motion hearing that would permit me to be satisfied that such claims are within jurisdiction. Absent such argument I cannot be satisfied, in the relevant sense, that such a declaration should or could be made in all of the claims pleaded; 2. At the very least the Applicant conceded that the GIPA Act claim is beyond jurisdiction. It would therefore be inappropriate to make such a declaration in respect of that claim; and 3. As to the cl 70A of the CLM Regulation claim, whether it is within jurisdiction is an issue upon which the parties are joined in issue. It is appropriate that such issue be fully argued at the final determination of the substantive proceedings once evidence has been adduced and argument heard.
9. I decline to make Order 6.

Conclusion and Orders

1. For the reasons outlined above, I make the following orders and directions: 1. The Second Respondent shall provide the Applicant, by post, a legible printed copy of the documents it has previously provided in PDF format in answer to the Applicant's Notice to Produce dated 6 May 2024 entitled: 1. EMAIL parking at Frank Walford Park: PDF; and 2. EMAIL permission to remove Frank Walford Park from application: PDF. 1. Grant the Applicant leave to file a further amended summons incorporating the amendments proposed in the Draft Further Amended Summons dated 20 September 2024 in the following respects only: 1. Paragraphs 1, 3, 10, 11 and 12 on pages 2 and 3; 2. Paragraph 2 on page 4 only in so far as it inserts the words "and 6-12 January 2024 respectively"; 3. Paragraphs 6, 7, 8, 9 and 10 on pages 5 and 6; 4. Paragraph 11 on page 6 only in so far as it incorporates the words at paragraph 11(b)(i) and (iii); and 5. Paragraphs 12, 13 and 14 on page 7. 1. Direct that the Applicant file the further amended summons in accordance with these orders within 7 days of the date of these orders in both a tracked and untracked format. 2. The 20 September 2024 Amended Motion is otherwise dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 September 2024